James Macharia & Another & Another v Mohammed Nazir Khan

agreement recorded before the Chief, both of which demonstrated intent to perform the contract; 3. 4. (e) the trial court failed to properly evaluate the relationship between the land transaction and the vehicle exchange arrangement, thereby disregarding relevant evidence on settlement of the underlying debt; (f) the award of over Kshs.3.9 million in mesne profits plus interest was excessive; (g) it is just, equitable and in the interest of justice that leave be granted so the that the intended appeal may be heard on its merits, particularly given her illness, the substantial value of the property, and the constitutional right to a fair hearing. The application is opposed. The respondent filed a replying affidavit dated 4th March 2026 in which he averred that: (a) the time lapse since the delivery of the impugned judgment is 16 years; (b) after the delivery of the impugned sought to be appealed against, the applicant through her advocate filed a notice of appeal dated 18th May 2016 (erroneously dated 17th April) but since then, he never filed the appeal; (c) also, the applicant through his wife filed a notice of appeal dated 23rd May 2016; (d) that the decree was successfully executed and the premises handed over to the respondent; (e) that previously the applicants filed an application at the Court of Appeal, Nyeri being Civil Application No. 23 of 2017 (ur 15/17) which was abandoned; (f) that an application for change of advocates was filed but was never prosecuted: (g) trusting that the litigation was over, the respondent sold and transferred the property to a third party as evidenced by the annexed documents; (h) that at the time the applicant is claiming to have been sick, he was actively litigating before this Court up to 26th April 2017; (i) that the applicants relocated to the US to evade execution which amount has escalated to Kshs. 8,624,000/= including disposing their assets to avoid satisfying the decree; (j) the applicants should be ordered to deposit the entire decretal sum in Court as security as a pre-condition of being heard. In opposition to the application, the respondent filed the replying affidavit dated 4th March 2026. The salient averments are: (a) the primary suit was filed in 1990, it was determined after 16 years and the trial Court awarded the respondent Kshs.3,920,000/=; (c) the decree has since been successfully executed; (d) the applicants previously filed a stay application being Civil Application No. Nyeri 23 of 2017 which they abandoned with no orders as to costs; (e) the respondent has since sold and transferred the property after the stay application was withdrawn; (f) eight years later, the applicants appeared seeking mediation which failed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/582/eng@2026-03-17 2

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(g) it is not true the applicant was unwell or incapable of attending to the case because throughout the period the 1st applicant claims to have been sick, he was busy filing applications in Court, (h) the applicant have since the delivery of the judgment disposed all their known assets; (i) that the proceedings before the two Courts were being pursued by both applicants, therefore, if at all the 1st applicant was sick, there is no reason why the 2nd applicant did not pursue the case. 5. As at the time of writing this ruling which is at 11.28 am on 17th March 2026, the applicant had not filed his submissions, therefore, I wrote the ruling without the benefit of the applicant’s submissions, having seen it fit to proceed with the application as provided by Rule 58 (1). 6. The respondent filed submissions dated 13th March 2026 which I have carefully read including the authorities cited. In a nutshell, the respondent maintains that the application is not merited, the delay is inordinate, there is no plausible explanation, that the respondent will be prejudiced and lastly, the appeal is not arguable. 7. The application is brought under Rules 4 of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act. Rule 4 provides that: “ The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” The Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR summed up the applicable considerations as follows: 8. i. Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; iii. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to- case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether there will be any prejudice sufiered by the respondents if the extension is granted; vi. Whether the application has been brought without undue delay; and, vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. The guiding threshold is clearly set out in Rule 4 which is “on such terms as may be just” which means the standard is the "interests of justice," which requires balancing the explanation for the delay, the prospects of success, the importance of the case, and prejudice to the parties. A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise. If the explanation for the delay is not plausible (i.e., it is weak, contradictory, or non-existent), the Court usually will not exercise its https://new.kenyalaw.org/akn/ke/judgment/keca/2026/582/eng@2026-03-17 3

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discretion to extend time even if the appeal has merit. A good explanation for a delay is often needed to satisfy the "good cause" requirement. 9. I have looked at the reasons provided by the applicant highlighted earlier. The judgment of the first Appellate Court was delivered 16 years ago. The applicant says he was unwell. There is a counter accusation that he was still litigating in this case around the same time he is claiming to have been sick when he is said to have filed applications in Court. But more important, it has been averred that execution is complete. Therefore, there is nothing to appeal against. This casts doubt as to the arguability of the appeal, which is also a consideration in an application of this nature. For these reasons, I find no merit in this application, I dismiss it with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 17TH DAY OF MARCH, 2026. J. MATIVO ........................... JUDGE OF APPEAL I certify that this is a true copy of the original. signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/582/eng@2026-03-17 4

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